THE TBI RECOVERY PROCESS – A LEGAL PERSPECTIVE By Stephen R. Elville, J.D., LL.M. - Elville & Associates, P.C. 2017 BIAMD Annual Conference Radisson Hotel – North Baltimore Timonium, Maryland March 23, 2017

learning objectives of today’s presentation To understand the immediate legal considerations for a TBI victim To understand the general legal landscape for TBI victims and for their families To understand how to deal with continuously changing circumstances for TBI victims and for their families during the long recovery process learning objectives of today’s presentation

BRIEF OVERVIEW of today’s presentation Estate and Incapacity Planning Fundamentals Adult Guardianship and Substitutes for Guardianship Right of the TBI Victim to Self- Determination What are Families to Do? Case Studies BRIEF OVERVIEW of today’s presentation

Estate and Incapacity Planning Fundamentals Purpose and Intention in Planning? Why Plan? The Problem Understanding the Nature and Flow of Assets Planning for Flexibility Planning for Health Care Decision Making Estate and Incapacity Planning Fundamentals

Purpose in Estate Planning

Why Plan? To provide certainty for loved ones Facilitate smooth administration of estate Minimize cost of administration Asset protection – for spouse, children or grandchildren Minimize or eliminate taxes Achieve your special purposes To attain your definition of Estate Planning Why Plan?

Why Do Most Estate Plans Fail? Attorneys and clients tend to treat estate planning as a set of documents and not as a lifetime process. This is what we call “traditional estate planning” or tep. _____ YEARS BETWEEN FOLLOW UP VISITS? For TBI Victims, failure equates to lack of incapacity planning

Problematic FACTS According to the ABA, 55% of Americans have no estate plan. Another recent survey indicated 80% of Americans age 35-44 have no estate plan. Of the 45% of Americans who have an estate plan, they tend to update their plan only once every 19 years, if at all. Of the 45% of Americans who have an estate plan, less than 1 in 4 of those individuals or families has participated in or had exposure to client legal education.

PROBLEMATIC FACTS (contd.) This means that greater than 75% of Americans who do planning (75% of the 45%) have no exposure to client legal education or follow up. As of January 2016, the nation’s leading estate planning body, the Heckerling Institute of the University of Miami, estimated that 48% of all estate planning attorneys are doing the same things in 2016 as they did 10 years ago in 2006.

Advance Medical Directive Will-Based Structure Will Power of Attorney Maryland Statutory Power of Attorney Supplemental General Power of Attorney Advance Medical Directive MOLST Health Care Decision Making Worksheet

Advance Medical Directive Revocable Trust-Based Structure Revocable Living Trust Pour-Over Will Revocable Trust Assign- ments Power of Attorney Advance Medical Directive

Understanding Non-Probate Transfers (Devices) Joint ownership Beneficiary Designations Life Estate deeds transfer on death designations (tod) payable on death designations (pod) itf accounts (in trust for)

Will or Revocable Trust Non-Probate Devices Will or Revocable Trust Joint Ownership Passes to Surviving Joint Owner Payable on Death (POD) Passes to Beneficiary Transfer on Death (TOD) Passes to Beneficiary Beneficiary Designation Passes to Beneficiary (retirement plans, annuities, life insurance) In Trust for Accounts (ITF) Passes to Beneficiary Life Estate Deeds Passes to Remainderman

Will or Revocable Trust Best Plan in the World Joint Ownership Surviving Joint Owner Will or Revocable Trust Payable on Death (POD) Transfer on Death (TOD) Beneficiary Designation In Trust for Accounts (ITF) Life Estate Deeds Beneficiary/Remainderman Understanding how assets are owned at the Time of incapacity or death is THE Key TO ESTATE AND ELDER LAW PLANNING

Understanding the Nuances of Incapacity Planning Powers of attorney advance medical directive molst – medical orders for life sustaining treatment

Advance Medical Directive Incapacity Planning Powers of Attorney Maryland Statutory Power of Attorney Durable General Power of Attorney Advance Medical Directive MOLST Healthcare Decision Making Worksheet GUARDIANSHIP

Avoidance of Guardianship YOU Advance Medical Directive Power of Attorney Your Agent Successor Agents Interested Persons Management of your Management of your Financial Affairs Health Care Affairs Helps Avoid Guardianship Helps Avoid Guardianship Property of the Person Surrogate Decision Making

WHY IS THE MARYLAND STATUTORY POWER OF ATTORNEY “NOT ENOUGH”? Special Instructions Portion not Sufficient ”Substantially Similar” requirement too onerous and ambiguous Enhanced fiduciary powers necessary for contemporary estate planning Elder law concerns Planning for loved ones with special needs

ENHANCING THE MARYLAND STATUTORY POWER OF ATTORNEY UTILIZE A TWO-TIERED APPROACH – TWO POWERS OF ATTORNEY PERSONAL FINANCIAL POWER OF ATTORNEY, ALONG WITH A GENERAL DURABLE POWER OF ATTORNEY UTILIZE REVOCABLE TRUST POWERS IN COORDINATION WITH POWERS OF ATTORNEY BUILDS A BROAD PLATFORM OF FLEXIBIITY UTILIZE SPECIAL AGENT AND TRUST PROTECTOR POWERS COUNSELING IS KEY POTENTIAL PROBLEMS

UTILIZING ENHANCED POWERS (CONTINUED) POWERs TO PROVIDE COMPANIONSHIP Customized Further POWERS SPECIFIC TO OPERATE A BUSINESS OR BUSINESSES Customized Further POWERs REGARDING SAFE DEPOSIT BOXES POWERs TO FUND A FIRST PARTY SNT Design Limitations on powers via special agent authority (or Trust Protector)

UTILIZING ENHANCED POWERS POWER TO ESTABLISH REVOCABLE AND IRREVOCABLE TRUSTS Customized POWERs TO FUND TRUSTS Customized POWERs TO CHANGE BENEFICIARY DESIGNATIONS POWER TO MANAGE DIGITAL ASSETS POWER TO MANAGE GOVERNMENT BENEFITS POWER TO Engage in A MEDICAID SPEND DOWN OF ASSETS POWER TO CARE FOR AND DEAL WITH PETS customized POWERs TO GIFT ASSETS POWERs TO manage care and RECEIVE COMPENSATION

Effectiveness of Power of Attorney Access to Power of Attorney Durable General Power of Attorney ---- Effective Immediately You (Principal) Your Attorney-in-fact ---- Power Immediate Durable General Power of Attorney with Escrow Springing or Contingent General Power of Attorney You (Principal) Your Attorney-in-fact ---- Power Not Effective Until Principal’s Disability

ADVANCE MEDICAL DIRECTIVE Health Care Decision Making ADVANCE MEDICAL DIRECTIVE Attorney General’s Form: recommended only No required format: no limitations Personal Input: important considerations Personal preferences Food, entertainment, visitations, communications, lifestyle Appointment of agents Effectiveness of power End of life decisions (living will) Flexibility options – can my agent change my decisions? (if they think another option is better?) Organ donation options Final arrangements (celebration of life options)

Medical Orders for Life Sustaining Treatment MOLST Medical Orders for Life Sustaining Treatment Effective July 2013 Relates To Current Medical Condition Health Care Decision Making Worksheet Attorney General’s Publications

ADULT GUARDIANSHIP AND SUBSTITUTES FOR GUARDIANSHIP The Most Restrictive Alternative Process Avoiding Pitfalls Awareness and Due Diligence Emotional Costs Financial Costs ADULT GUARDIANSHIP AND SUBSTITUTES FOR GUARDIANSHIP

What is guardianship?

Guardianship At age 18, an individual is presumed to have legal capacity If loved one lacks capacity to manage personal or financial affairs, a court appoints a guardian or conservator to take control over that person’s affairs Process - described

What are the benefits and drawbacks to guardianship?

BENEFITS OF GUARDIANSHIP Ultimate level of control Supercedes powers of attorney and advance directives Guardianship Order Certainty Accountability Court is the ultimate guardian

DRAWBACKS OF GUARDIANSHIP Expense Loss of independence for ward (rights, etc.) Cumbersome and time-consuming Annual accounting Loss of certain flexibility Potential for conflict Process can be challenging

What are the questions every family should ask before making the decision to pursue guardianship?

QUESTIONS (1) Is there a lesser restrictive alternative? (2) Is guardianship really necessary? (3) Am I prepared to see this through? (4) Am I emotionally prepared for the guardianship process? (5) Do I have the support of family and the physicians?

What are some alternatives to guardianship?

ALTERNATIVES TO GUARDIANSHIP Representative Payee Joint ownership Power of attorney Advance Medical Directive Surrogate decision making Other lesser-restrictive alternatives Victim’s competency and high functionality

Right of the TBI Victim to Self-Determination Effect of Guardianship Effect of Powers of Attorney and Advance Medical Directive (broadly construed) Recovery Medical Assistance and Waiver Programs Termination of Guardianship? Borderline Functionality/Capacity of the TBI Victim Special Needs Planning Estate Planning and Ownership of Property Right of the TBI Victim to Self-Determination

Understand the Fundamentals of Estate Planning and Guardianship Understand Fiduciary Duty (Rights and Responsibilities) Limit Liability Seek Professional Advice – Utilize the Planning Team Be a Strong Advocate Be Emotionally Prepared Understand Special Needs Planning Understand Medical Assistance and Waiver Programs What Are Families to do?

Case studies Visiting Relative Gets Back to Life The College Freshman Who Inspires A “Hardest Working” Couple Young Father Survivor is Guarded Strong-Willed Man Refuses to Accept Defeat An Accidental Sweetheart Love Story – Conquering All Case studies

If you have any questions whatsoever, please call Steve at: Thank you!! If you have any questions whatsoever, please call Steve at: 443-393-7696, or email at steve@elvilleassociates.com